Recently at Reason.tv: 3 Reasons YouTube Shouldn't Censor Downfall Parodies

The video sharing site YouTube.com recently started blocking access to countless parodies of the 2004 German movie Downfall, a critically acclaimed film that chronicles Adolf Hitler's final days in a Berlin bunker.

The parodies take off from a powerful monologue by the great actor Bruno Ganz and the original joke version had Hitler being banned from XBox Live for bad behavior. Other examples feature Hitler trying to score Miley Cyrus concert tickets, counseling Conan O'Brien after losing a late-night slot to Jay Leno, and much more.

It's understandable why Downfall's production company, Constantin Film, might be upset that such a serious movie is being burlesqued, but pushing YouTube to ban the parodies is a terrible idea for at least three reasons:

1. It's fair use! The parodies, which transform a few minutes of a three-hour movie, are clearly legit under existing copyright laws. Because they clearly transform the original and have no possibility of confusing viewers, the parodies are clearly protected speech.

2. This is free promotion! As George Lucas could tell the filmmakers, fan-generated videos help keep the original source material vital and relevant. Lucas used to try to police all Star Wars knock-offs, until he realized that his audience was promoting his films more effectively than he ever could. More people have surely seen Downfall due to the popularity of the parodies.

3. Let's keep the Internet creative! The greatest cultural development over the past 20 or so years has been technologies that allow producers and consumers to create and enjoy an ever-increasing array of creative expression in an ever-increasing array of circumstances. This development is nowhere more powerful than on the Internet, which has unleashed a whole new universe of writing, music, video, and more. Indeed, YouTube is itself one of the great conduits of cyberspace. Pulling down the Downfall parodies may be within YouTube's rights, but it nonetheless strikes a blow to the heart of what is totally awesome about the Internet.

"3 Reason YouTube Shouldn't Censor Downfall Parodies" is written and produced by Meredith Bragg and Nick Gillespie, who also hosts.

Approximately 2:49 minutes. Scroll down for iPod, HD, and audio versions. Subscribe to Reason.tv's YouTube channel for automatic notification when new material goes live.

Comments

[Pro Libertate]

Downfall is a damned fine flick.

And parodies are nice, too. Even ones that are overdone. I liked the one where Hitler was a Cowboys fan. Because, of course, Hitler was a Cowboys fan.

[Adolf Hitler]

Downfall is shit! YouTube, double scheisse! I was never a Cowboy fan, you gigantic piece of swine excrement! The glorious Eagle will crush the Cowboy and anyone else who stands in her way!!!

[Louiy Jones]

I wuld have to agree, Youtube is getting mighty full of itself lately with all the censoring.

Lou
http://www.being-anonymous.at.tc

[James J B]

Man, the youtubers are such Nazis for pulling these parodies.

Seriously - the housing bubble was the best - when hitler says I will miss the granite countertops I lol'd.

[ed]

Man, the youtubers are such Nazis for pulling these parodies.

Your name-calling is misdirected. It is the producers of the film, ironically, who are being the "Nazis" (if wishing to retain control over your own property is to be considered Nazi-like).

[dfd]

You're right in part, youtube isn't being a Nazi it's being a pussy for giving in to baseless copyright claims.

But the rest is nonsense. The producers don't have a property interest in the parodies, only in their original work.

[ed]

Their original work is their property, and it appears without their consent in the parodies. So whether you agree or disagree with their business strategy regarding Downfall, it is still their prerogative. Incidentally, YouTube's copyright infringement policy has protected them, so far, from being sued out of existence.

[MDF]

You're assuming that which is being debated. It's their property in its entirety, but they do not have a property interest in a part that is modified for parody purposes. The point is that it's not their prerogative.

[kinnath]

Youtube's process is public and rational. If the owner of a copyrighted work complains, Youtube's search algorithm pulls any content that matches the copyright holders contested content. If the person who posted the contested content that was pulled claims fair use, Youtube puts it back up. At that point, the copyright holder has to go directly after the person that posted the contested content.

[Cthorm]

"More people have surely seen Downfall due to the popularity of the parodies."

I watched "Hitler's Take on the iPad," and then added Downfall to my Netflix que. It was an -awesome- movie, and I would never have watched it if I had not seen the parody.

[BakedPenguin]

It makes it hard to defend IP when the major IP stakeholders are such assholes. "Fair Use" has become a joke, and it will take a deep pocketed NGO to bring about it's revival. As it is, everyone is scared shitless of lawsuits.

[Vernunft]

"It's fair use! The parodies, which transform a few minutes of a three-hour movie, are clearly legit under existing copyright laws. Because they clearly transform the original and have no possibility of confusing viewers, the parodies are clearly protected speech."

Nope, it's satire, not parody. You don't know the law.

First semester in law school is when you learn that wherever opposing counsel says "clearly" is the part of his brief that's the weakest. 🙂

[BakedPenguin]

Satire:
1 : a literary work holding up human vices and follies to ridicule or scorn
2 : trenchant wit, irony, or sarcasm used to expose and discredit vice or folly

Parody:
1 : a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule
2 : a feeble or ridiculous imitation

I'm not sure how you get "satire" from those videos. They clearly fit the second set of definitions much more closely than the first.

Fair Use was also meant to cover using small portions of a work. Three minutes of a two hour video is a small part of the whole.

[capitol l]

They clearly fit

Damn Pen, didn't you read dude's post, he knows the secret. Somehow it has been leaked to law schools that "clearly" is a sign of weakness. That word must never be mentioned again.

*shakes fist at sky*...Damn you! Meddling law school kids, Damn you straight to hell!!

[BakedPenguin]

That was purposeful. Fuck lawyers. With a few exceptions (e.g., Pro Libertate), they seem to be divided into John Yoo-esque sycophants to power or "Saul Goodman"-esque dirtbags.

Isn't something like 98% of Congress composed of lawyers? Enough reason to want to start bombing law school graduations.

[Pro Libertate]

No argument from me.

I wouldn't make too much of the parody/satire "distinction" made in Acuff-Rose. It's only part of the overall fair use analysis and really only ties to the fact that, by definition, parody has to use big chunks of the underlying original work; satire doesn't. I think the Court's real point was that parody is going to get fair use protection much easier than satire.

That said, the use of the Downfall video can't just be called satire. Here's how the Court defined the terms in Acuff-Rose:

Satire has been defined as a work "in which prevalent follies or vices are assailed with ridicule," The Oxford English Dictionary 500 (2d ed. 1989), or are "attacked through irony, derision, or wit," The American Heritage Dictionary 1604 (3d ed. 1992).

Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule," or as a "composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous." For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works.

That distinction might sound good on paper, but how can it really be applied effectively here? Some portion of every one of these videos is making fun of the portrayal of Hitler in Downfall. That's parody. The fact that the videos may also make more general social commentary doesn't change that.

Personally, I think this is pretty obviously fair use, especially since there's no real effect on the commercial market for the film (the videos help, if anything). There are multiple factors to a fair use analysis, but that one is usually the one that sways courts the most.

Google is naturally inclined to be conservative on this kind of issue while it continues to work to get copyright owners to play ball on Youtube. So their willingness to play ball means little in regards to the legal merits of the claim.

[Robert]

I enjoy the Downfall-derived pieces, but I'm not sure they should be considered fair use, rather than just a way to get these people's performance for free in service of whatever message you want. Pastiche they may be, but I don't know that many of them really qualify as parodies.

The fact that everyone seems to have settled on this one scene from the movie to resubtitle is pretty strong evidence to me that out of all the length of the film, this is the best part.

I enjoy a lot of works that are pastiche, such as mash-ups and the work of Craig Baldwin. Tribulation 99 I recommend highly. At the same time, I wish the providers of the raw material could get something for what they've provided thereby, yet not be able to hold up progress in derivative works, and I don't want information costs to overwhelm all the transactions that would be necessary. Universal, mandatory license seems to satisfy my desiderata.

[Robert]

If people wanted to get the effect of these Downfall derivatives free & clear, why couldn't they just film themselves a scene that would obviously be a shout-out to the original? That way they wouldn't have to subtitle it, unless they wanted to. It would be inexpensive to produce -- no fancy sets or effects, and most of the cast don't even have speaking parts, and their number could easily be cut down without losing any of the effect. You could get costumes, but they don't even have to reflect the original -- just the fact of their being costumes of some kind, any kind you like, would get it across.

[Robert]

Professional screen productions do that plenty. Lost on TV (the serial, not the game show) has had plenty of shots and scenes made to resemble those of movies and comic books. There's no reason home movies can't do so just as easily and effectively.

[BakedPenguin]

There's no reason home movies can't do so just as easily and effectively.

Let me guess, you've never worked in video / film production.

[Robert]

Not for money.

[BakedPenguin]

...why couldn't they just film themselves a scene that would obviously be a shout-out to the original?

First, what should be obvious - the expense in creating the scenery, costumes, hiring actors, etc. is prohibitive. Second, recreating the performance of Bruno Ganz would be impossible - it probably would have been impossible for Ganz to redo after that take, let alone some amateur or community theater actor trying to imitate it.

[Robert]

Well, then, you're saying that's just it -- that it really is the performance that's valuable, which means it's not about parody or satire, and it is possible that Mr. Ganz has foregone some income by not acting in lots of productions that instead use his clips. Otherwise people would have done exactly what you suggest.

The scenery and costumes would be really cheap if they don't have to match exactly. For example, a road map of New Jersey on the table, and the costumes are baseball uniforms, get your friends and family to act, and I'm sure you could make a fine parody if it's not Mr. Ganz's performance that's the value in the whole thing.

[BakedPenguin]

Pro Libertate wrote a good couple paragraphs on fair use. I'll try not to repeat most of what he wrote, but this small bit is important: Using a small portion of the actual, original art work does not nullify fair use. The fact that it's Ganz' performance that makes the parodies valuable doesn't negate their fair use claims.

[Robert]

But not all portions of an original are equal. If all anybody wanted to do was use some of Downfall, then you'd expect them to be using different parts of it. They're not, which suggests strongly to me that they've taken the most important or best part. Does Mr. Ganz appear in much of the rest of the flick? If so, does any other passage of it so starkly highlight his skills?

I'd be less inclined to see Downfall now, because I suspect I've already seen the best part, many times, and gotten the gist of it that it's about this ranting guy who thinks he's in charge but really isn't.

[gaoxiaen]

I never heard of it until now. It's interesting. Maybe I'll watch it.

[Voros McCracken]

Nice use of an Angry Samoans classic in the background!!

[Ken Shultz]

I just wanted to say that the people out there who are always comparing Barak Obama to Darth Vader?

It think that's completely outrageous. Barak Obama may have squandered $940 billion on a bad healthcare system, but that's hardly comparable to Darth Vader building a Death Star and using it kill billions of people...

If you can't see the difference between what Barak Obama has done to our healthcare system and Darth Vader wiping out an entire planet of people, then you're not just being insensitive--you've gone to the dark side.

[Just a Kid]

I've always been on the darkside.By the way try to be more relevant to the topic of the comment's page next time.

[Just a Kid]

Aha I get your reference now. Idiots will compare Obama to a duck, but I doubt you'll find anyone here doing that.

[Kolohe]

Say what you will about the Galatic Empire's Military Industrial Complex, at least they built weapons systems that worked.

[Seamus]

Yo, fuck Constantin Film AG.